Complainant

Respondent

Parties

Frank  O'Donnell

Letterkenny Universal Hospital

Representatives

Fiona Browne Browne & Co

 Paul Hume HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056355-001

27/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056355-002

27/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056355-003

27/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057433-001

28/06/2023

The complainant alleges that he is entitled to accumulated leave during a period of cocooning during Covid, unpaid annual leave during a period of sick leave, and that he was constructively dismissed by the respondent.  The Hearing took place on 12th September 2023 and 12/13 February 2024.

Evidence was given under oath/affirmation by Mr Frank O’Donnell, the Complainant and by Mr Peter Byrne, Facilities Manager for the respondent.  Evidence was subject to cross examination.  Various documents/submissions received were considered by me.

BACKGROUND

At all material times hereto, the Complainant worked in housekeeping at Letterkenny University Hospital under the Domestic Services Department as a Domestic Assistant having been employed by the Respondent since 1992.

The Respondent is a hospital providing healthcare and other medical services as part of the Saolta Health Care Group under the direction of the Health Service Executive.

The Complainant commenced employment with the Health Service Executive in or around February 1992 in the Catering Department. The Complainant thereafter worked as a Clerical Officer and was transferred to his current role in Domestic Services on or about 17th December 2012, wherein he remained up until the cessation of his employment in or about April 2023.

The Complainant was ordinarily assigned cleaning duties within the medical wards, and in particular Medical Ward Il, and was supervised by a Domestic Supervisor, Ms Yvonne Harkin, who in turn is line managed by the Facilities Manager, Mr Peter Byrne.

The Complainant was deemed to be a very high risk category in respect of the COVID-19 disease and in accordance with the HSE Circular 065/2020. The Complainant was subsequently placed on cocooning leave in line with the recommendations of the Complainant's treating consultant physician at the time, The Complainant was to remain out of the workplace and was noted as being fit to work from home.

The Respondent submits that it had no alternative work for the Complainant where he could work from home. However, the Complainant contends that the Respondent at no time made any effort whatsoever to provide the Complainant with alternative work duties which he could carry out whilst cocooning at home.

ANNUAL LEAVE AND PUBLIC HOLIDAY PAY

It is contended by the Respondent that annual leave had accrued during the period in which the Complainant was cocooning at home and that the said annual leave entitlements had to be taken withing the said leave year. However, it is the Complainant's submission that at no time did the Respondent make the Complainant aware that during the period of cocooning that annual leave was accruing and/or had to be taken during the annual leave year. At no time did the Respondent ever indicate to the Complainant that he was under an obligation to take the annual leave or that the annual leave that had been accruing whilst the Complainant was cocooning was being randomly assigned and/or allocated to be used. At no time was there any agreement between the Complainant and the Respondent in relation to the accrual and/or allocation of annual leave during the period of cocooning. The Respondent was not permitted to direct that the Complainant utilise his annual leave or that be allocated as having been spent during the extended period of time which the Complainant was cocooning.

For the above reasons, the Complainant maintains a complaint for the annual leave which accrued during the period of cocooning and which the Complainant has been sporadically reimbursed in lieu of the annual leave by the Respondent in the time since. The Complainant contends that compensation in respect of annual leave which is owed to the Complainant arising from the time in which he was cocooning and/or arising from the time in which the Complainant had returned to work following April 2022 and was on certified sick leave thereafter is as follows;

313.4 hours per year at €16.89 per hour

2021-2022-

313.4x € 16.89 = €5293.33

2022-2023

54.45 x €16.89- €919.79

Total €6213.12

Furthermore, the Complainant submits that the Respondent has failed, refused and/or neglected to pay the Complainant for the pay due and owing as a result of the public holidays during which the Complainant was at work and/or available to work and which under the Organisation of Work and Time Act 1997 the Complainant has an entitlement to such payments totalling €693.

It is submitted on behalf of the Complainant that the Respondent its servants or agents failed, refused or neglected to pay the Complainant the correct amount of annual leave / public holiday pay that had accrued to the Complainant since January 2019 until the date of cessation of the Complainant's employment and that there are outstanding payments due to the Complainant in respect of same.

It is submitted on behalf of the Complainant that he is entitled, pursuant to Section 19 of the 1997 Act, to have his annual leave / holiday pay calculated by the method set out in Section 19 which affords the Complainant the greatest entitlement.

CONSTRUCTIVE DISMISSAL

BACKGROUND TO COMPLAINT

It is submitted by the Complainant that the Respondent, maintained and managed a working environment which was toxic in nature; which failed to adhere to its own policies, procedures and agreements; which had policies and procedures which were fundamentally unfair; and which permitted bullying and harassment of the Complainant to take place.

It is submitted that the Complainant suffered severe stress and anxiety as a direct result of the acts and/or omissions of the Respondent, its servants and/or agents, the cumulative effect of which was that the Complainant was left with no alternative but to resign from his position.

RETURN TO WORK / FAILURE TO ADHERE TO RETURN TO WORK

AGREEMENT DATED 15TH APRIL 2022

Prior to the Complainant's return to work in or about April 2022 following the period of cocooning, a meeting was organised to facilitate the Complainant's return and present at the meeting were Mr Byrne, Ms Harkin, the Complainant and the Complainant's union representative. The meeting took place in about 15th April 2022.

The Complainant does not agree with the Respondent who alleges that it was the Complainant who expressed concerns about the returning to work in a patient area due to unvaccination and/or that it was agreed that the Complainant would return to work in a non-patient area. The Complainant submits that the facilities manager, Mr Peter Byrne, agreed that the Complainant could return to work on Tuesday 19th April 2022 and that in circumstances where Mr Byrne was on annual leave that week, that Ms Harkin, would check with Infection Control that it was in fact acceptable for the Complainant to return to his usual place of work being Medical Il. It was further agreed that if Infection Control did not agree to the Complainant returning the Medical Il, that the Complainant was willing to return to a place of work that did not have patient contact. In that respect, Miss Harkin agreed to sort the issue and also undertook to organise the relevant refresher courses for the Complainant prior to his recommencing work. The minutes of the meeting support the complainant’s position in this regard.

The Complainant completed all certification in line with Infection Control requirements and returned to work on Tuesday April 2022, as agreed. At approximately 10.00am, the Complainant was met by Ms Harkin and she ordered the Complainant to cease work and told him that he was meant to report to the X-Ray Department. The Complainant said that he was fully certified to come back to work. The Complainant was then demanded by Ms Harkin to leave the building. The Complainant was threatened to either leave the building by his own accord or Ms Harkin would make arrangements to get security to escort him from the building.

The Complainant felt very embarrassed and was worried that observers might make assumptions as to why he was being escorted from the building however, in line with what was agreed on 15th April 2022 and further in line with what Infection Control had advised, the Complainant indicated to Ms Harkin if there was a job to do and that he wanted to continue to work.

The Complainant then rang Mr Joe Travers, Ass General Manager of the hospital, and explained that he did not understand why he was being asked to leave the building. The Complainant also rang his union representative Ms Margaret Doherty. The Complainant had a cup of tea in the staff canteen with Ms Doherty and while there the Complainant again rang Infection Control and spoke with Ms Martina Grelish a conversation which was heard by Ms Margaret Doherty as well. Ms Grelish informed the Complainant that she had spoken with Ms Harkin on the previous Friday and advised her that the Complainant was able to return to work. However, notwithstanding this, the Complainant followed the advice of Mr Travers and MS Doherty in that in circumstances where he was being asked to leave the building under the threat of security, that there was very little he could do at that time.

The Complainant returned to put his trolley away as there were chemicals in it and when he got to Medical Il he realised that another member of staff had taken over this work. The Complainant was followed by Ms Harkin as he walked through the hospital in an intimidating manner, and this made the Complainant feel uneasy and threatened.

The Complainant was under the care of cardiologists due to high blood pressure and other underlying conditions. The Complainant went home on 19th April 2022 because of the stress caused by the actions of Ms Harkin. It is submitted that there was no reason why the Complainant be prohibited from returning to work in Medical Il upon his return to work on the 19th April 2022. It is further submitted that the Respondent its servants and/or agents were in breach of the agreed return to work agreement reached between the parties at a meeting on the 1 5 of April 2022.

Although the Complainant did not have COVID-19 vaccinations, it was at all material times the HSE policy and procedure that where a person had COVID-19, that there was a level of immunity enjoyed by that person for a period thereafter. The Complainant had COVID-19 on 14th January 2022 and therefore under the Health Service Executive guidelines, the Complainant was eligible to return to work and it could be seen in a similar light to someone who had a COVID-19 vaccination and enjoyed the same immunity.

CESSATION OF PAY BY RESPONDENT DURING PERIOD OF COCOONING

During the time in which the Complainant was off work due to being very high risk of contracting COVID-19, the Complainant made contact with Mr Byrne on or about 15th December 2020 to say that he had followed up with his consultant to obtain a letter regarding his condition. However by 21st December 2020 the Complainant had not been in a position to provide such a letter and Mr Byrne took the decision to cease the provision of the Complainant's pay. This was highlighted by Mr Byrne in a letter to the Complainant dated 21st December 2020.

At the end of December 2020, the Complainant's treating consultant recommended that he was fit to return to work in a non-patient facing area. Mr Byrne contacted the Complainant in or around January 2021 to notify him a role was identified in a nonpatient facing area and asked that he make contact with Mr Byrne. Notwithstanding the fact that the Complainant did not at this time feel safe to return, the Complainant was also not being paid during this time.

The Complainant eventually had to reach out directly to the CEO of the Saolta Group to ask that his pay be reinstated, which it was with immediate effect. It is submitted that this unlawful cessation of pay at the bequest of Mr Byrne was intentionally carried out to cause additional stress and anxiety to the Complainant at a time in which he was medically vulnerable and cocooning. This had a detrimental, embarrassing, and upsetting effect on the Complainant, his wife and his family. It is submitted on behalf of the Complainant that the actions of the Respondent its servants and/or agents in this cutting of his pay was unwarranted and unlawful.

The Complainant raised a grievance in relation to the actions of Mr Byrne in this respect and a Stage 1 grievance meeting was held on 29th June 2022. By letter dated 14th July 2022 from Siobhan Murphy, HR business manager, the Saolta University Health Care Group, the Complainant was informed that his formal complaint against Mr Peter Byrne in relation to the cutting of his pay was not upheld. This caused the Complainant further stress and cemented his view that the Respondent had a systemic and persistent pattern of bullying and/or hardship.

UNILATERAL CHANGE TO COMPLAINANT'S ROSTER

Furthermore, the Complainant was forced to change his roster unilaterally. The Complainant would do up his own version of the roster so that he would have it at home and could look at it and know from week to week where he was meant to be. The Complainant went back to work on or about 20th June 2022 and immediately fell back into his old roster. The Complainant did not have check in with anyone when he started work each day and he would start work at 8.00am and go about doing what he had always done.

The Complainant was told that he had to stay on Medical Il by another member of staff, not his line manager, and he was told not to go to Medical Il at the weekends. The Complainant was told by a member of staff, not his line manager, that the person who looked after Medical Il went off one Sunday in a month at 1.00pm and that that left no one for the remainder of the day in Medical 3 on that one Sunday per month. The Complainant understood that this left no cover for approximately for approximately 24 to 26 patients, most of whom were elderly. The Complainant was aware that there was also a Stroke Unit under Medical Il and the patients there were very vulnerable. The Complainant was uneasy in relation to this.

The Complainant intended to voice his concerns however other colleagues would not back him up because they were afraid of the repercussions for their jobs. The Complainant believes that because he was working his old roster he was also asked to attend a meeting by management. The Complainant asked for his new work line. The Complainant was told that he was to work nine rooms. Ms Harkin, his line manager, demanded to speak with him and stated that "this may lead to disciplinary action”.  Following this the Complainant immediately rang HR and informed them of same. It is submitted that the threat by Ms Harkin in an informal fashion was without cause and did not follow the procedures set out by the Respondent in respect of disciplinary manners. The Complainant submits that this is an example of the flippant and bullying behaviour exhibited by Ms Harkin during the time in which the Complainant worked under her supervision.

CESSATION OF SICK PAY BY THE RESPONDENT IN LATE 2022

It is strenuously denied by the Complainant that from 22nd October 2022 until the cessation of his sick pay on 18th November 2022 that the Complainant in any way breached HSE managing attendant policy in respect of the completion of the HSE Stress at Work Risk Assessment. At all material times hereto, the Respondent was aware that the Complainant had submitted medical certificates to state that he was off work due to work related stress and that this was as a result of the actions of Mr Peter Byrne in particular as well as other line managers. Therefore, it is contrary to natural justice and any fairness that the Complainant would be required to complete a risk assessment in circumstances where the completion of same would involve discussions with Mr Byrne and or others who were the cause of the Complainant's stress. In that regard, the Complainant submits that the policies and the procedures of the Respondent in respect of the completion of the risk assessment are fundamentally flawed, unfair and egregious.

By email dated 15th November 2022 to Mr Peter Byrne and Ms Aisling McDonald, the Complainant informed them that in reference to the Health and Safety Risk Assessment form stamped and dated 28th October 2022, the Complainant was not in a position to complete the said form due to health condition and would complete same when he was able to do so.

It is submitted that it was unfair and contrary to natural justice and any fair procedures that the Complainant's request for Mr Paul Hume to meet regarding the completion of the risk assessment opposed to Mr Byrne was denied. During the entire period in question, the Complainant was under severe stress and was certified as being off sick as a result of the actions of the Respondent, its servants and/or agents. Therefore, it was contrary to natural justice and fair procedures and inherently unfair to expect the Complainant to attend with the Respondent's servants and/or agents to complete a risk assessment. Therefore, it was also unfair that the Complainant had his sick pay stopped during a very vulnerable period where he was under such stress.

By email dated 30th January 2023, the Complainant sent an email to Ms Aisling McDonald, HR Manager of the Respondent, in which he wished to make a formal complaint against Mr Peter Byrne, facilities manager at the Respondent hospital. The said complaint stated that Mr Byrne penned his statement regarding the Complainant on 20th April 2022 in Occupational Health Service Executive Employee Referral Form that was untrue. The Complainant raised the said grievance in accordance with the grievance and disciplinary procedures for the Heath Service Executive 2004. This complaint was acknowledged by Miss McDonald by return email dated 16th February 2023.

The Complainant's Stage I grievance hearing was scheduled for hearing on 23rd March 2023 at 3.00pm.

An occupational health report was completed on or about 14th February 2023 wherein it is stated that the Complainant was unfit for work at the time and that it was recommended by Dr Kelly that a work stress risk assessment be carried out by a manager with whom the Complainant had no interpersonal difficulties. It was recommended by the doctor that the Respondent engage with the Complainant as soon as possible to explore its concerns.

CONCLUSION

The Complainant maintains his complaints regarding outstanding annual leave and public holiday pay and wishes to seek the prompt payment of any such payment in lieu of same which is properly due and owing to him. Furthermore, the Complainant seeks compensation arising from the delay and inaction on the part of the Respondent, its servants and/or agents in respect of the management and payment of same.

Furthermore, the Complainant maintains his claim for Constructive Dismissal on the basis that the Respondent its servants and/or agents presided over and permitted a system of bullying; intimidation and harassment to arise whereby the Complainant had his sick pay cut; his pay cut; his roster changed unilaterally and threats made in an informal manner regarding disciplinary procedures; his return to work agreement breached and threats made to have him escorted from the building all contrary to the direction from Infection Control. For the above reasons, and as a result of the detrimental effect that this had on his mental and physical health, the Complainant was left with no option but to resign.

Mr. O’Donnell commenced employment with the HSE in January 1992 in the Catering Department.  He transferred to Domestic services on 17th December 2012 where he remained until his retirement in April 2023.   He was ordinarily assigned cleaning duties within the medical wards and was supervised by a domestic supervisor, who in turn is line managed by the Facilities Manager. 

Whilst he has had 31 years of employment with the HSE, Mr O’Donnell has had multiple periods of absence from work.  Since the year 2000, when electronic records of absenteeism became available, Mr O’Donnell has had 4255 absence days from work on sick leave plus an additional 459 days on Special Leave with Pay during covid (November 2020 – April 2022).

Some of those absences have been prolonged periods, one of which was over 11 years (approx. 3000 days). He availed of the Injury at work grant, for a back injury for that period.  Prior to his retirement in April 2023, Mr. O’Donnell had been on sick leave since 26th October 2022. This episode of absence was related to reported work-related stress. 

The following claims as submitted by the complainant are outlined below:

 CA 00056355 - 001, did not receive paid holiday/annual leave 

CA 00056355 - 002, did not receive public holiday entitlement 

CA 00056355 – 003, was not compensated for the loss of public holiday entitlement on leaving the organisation 31st March 2022 – 31st March 2024

CA 00057433 – 001  - Unfair Dismissal, had to leave job due to conduct of employer 

 Mr. O’Donnell was deemed “HCW in the very high risk” category in November 2020 and was subsequently placed on Cocooning available to work as per HSE Circular 065/2020- absence code 0406 Cocooning available to work which stated;

 High Risk & Very High Risk Categories

 2.2 What to do if an employee is identified as being at very high risk (extremely vulnerable) and is advised to cocoon? 

Employees should declare to their employer if they believe that they are at very high risk of COVID-19 The employer’s Occupational Health service should be consulted for employees in the very high risk category, or to determine if an employee falls into this category. 

Mr. O’Donnell’s treating Consultant Physician at the time concurred with the Mr. O’Donnell’s OH report.  Mr. O’Donnell’s OH report deemed him to “remain out of the workplace but was fit to work from home”.  The employer had no alternative work for Mr. O’Donnell where he could work from home. 

 During this period of time, there was accrual of annual leave and in order to the facilitate same, this leave had to be taken within the leave year.  As per correspondence from Ms. Yvonne Harkin on 29.11.21 Mr. O’Donnell had accrued 117 hours for leave year 2020/2021 (12 mth period Nov 20 -21) hours and was allocated his annual leave during the period he was cocooning available to work.  The HSE Terms & Condition of employment also state that “the time at which annual leave is taken is at the discretion of the employer”.  Section 20(1) of the Organisation of Working Time Act provides that the times at which annual leave are granted are determined by the employer.  The onus is on the employer to ensure that employees avail of their annual leave entitlement in the leave year to which it relates.  Had Mr. O’Donnell not been off on SLWP, he would have been in the workplace, therefore he was allocated his annual leave accordingly. As with other staff members who were off at this time, the employer utilised their annual leave as this category of staff were off for extended period of time during the Covid pandemic.  Mr. O’Donnell did not respond to Ms. Harkin’s correspondence.   

 As noted below Mr. O’Donnell remained on this special leave with pay for a period of 459 days.  There was also regular communication during this absence with Occupational Health regarding Mr. O’Donnell as per recommendation from the HSE Circular.

Complaint - change in particulars to work roster upon return to work in June 2022

In March 2020, when the Covid 19 pandemic was declared advice from National Infection Control teams mandated all acute hospitals to double their cleaning frequency in inpatient wards that housed Covid 19 patients.  Pre-covid there were 2 cleaning staff working in each of LUH Medical wards and when these medical wards housed Covid-19 patient this increased to 4 cleaning staff i.e. cleaning inputs doubled.  Mr. O’Donnell was working in LUH until November 2020 and therefore was acutely aware of these enhanced cleaning frequencies.  These enhanced cleaning frequencies remain in place to date.  

 Mr. O’Donnell returned to work in June 2022 following a period of absence from 26th November 2020 on cocooning available to work-Covid Special Leave with Pay (459 days).  Mr. O’Donnell worked continuously from June 2022 until his absence from 26th October 2022 and never at any stage had raised concerns regarding his work roster on Medical 2 during this time.

 Upon Mr. O’Donnell’s return in June 2022, no changes in particulars to any element of the working arrangements in the medical wards were made.  In fact, Mr. O’Donnell roster has remained in place for over 5 years and no evidence has been produced to the contrary to support his allegation. 

April 2022 incident – alleged breach by Mr. O’Donnell resulting in loss of income

Prior to Mr. O’Donnell’s return to work (in April 2022) from his period of cocooning (459 days) a meeting was organised to facilitate his safe return.  Present at this meeting were the Facilities Manager, one of the Domestic Supervisors, Mr. O’Donnell & Mr O’Donnell’s union rep – the meeting took place on the 15th April 2022. At this meeting, Mr. O’Donnell expressed concerns about returning to work in a patient area as he was unvaccinated.  Following a lengthy discussion, it was agreed that Mr. O’Donnell would return to work to a nonpatient area with agreement of refresher training including hand hygiene and Infection Prevention and Control training.

In advance of Mr. O’Donnell returning, his supervisor contacted him on 18th April 2022 via phone stating that on his return on 19th April 2022 that he would be working in the X-ray Department as this was a non-patient contact area and this was the agreement with the Facilities Manager.  However, upon Mr. O’Donnell’s return to work on the 19th April 2022, he actually reported to his substantive post in Medical 2 and completely ignored the agreement with the Domestic Supervisor to go to X-ray Department.  From an employer perspective, Mr. O’Donnell put himself at risk on this occasion as both he and his occupational health recommendation had stated that he work in a nonpatient area.  A statement from the Domestic Supervisor, Ms Harkin details  the events that took place of interactions between Mr. O’Donnell and various members of staff on this date including; Yvonne Harkin, Domestic Supervisor, Paul Hume – Employee Relations, Saolta, Joe Travers – Asst. General Manager, LUH

 The record of events very clearly outline Mr. O’Donnell’s non-cooperation with what was agreed.  It should also be noted that the employer had further set up a meeting with Mr. O’Donnell for the 20th April 2022 with Mr. Paul Hume, Employee Relations for Saolta and that Mr. O’Donnell did not attend this meeting. 

From an employer perspective there is no breach in relation to the working arrangements that were agreed for Mr. O’Donnell upon his return to work on 19th April 2022.  From Ms. Harkin’s statement, it is clear that Mr. O’Donnell was offered two options 1) to comply with the agreement of the 15th April 2022 which facilitated him working in a safe place or 2) leave his place of work pending further communication.  Mr O’Donnell did not convey an answer to either option and subsequently actually just went home without informing his line manager of same, therefore, contravening the HSE Managing Attendance Policy by virtue of the fact he left his place of work without notifying his supervisor.  This absence was extended from the 20th April 2022 until 20th June 2022 where Mr. O’Donnell was paid.  Therefore, Mr. O’Donnell had no financial loss during this period of time. 

 It should be noted also that Mr. O’Donnell had taken a grievance in relation to the alleged treatment and interaction between his supervisor Ms. Yvonne Harkin and Mr. O’Donnell on the 19th April 2022.  This grievance was heard at Stage 1 by Mr. Siobhan Murphy, HR Business Manager, Saolta Group on 29th June 2022 and was not upheld. 

 Cessation of sick pay as of 18th November 2022

On the 25th October 2022, the Domestic Supervisors requested a meeting with Mr. O’Donnell regarding an unauthorised change to his working arrangements whereby Mr. O’Donnell took it upon himself to change his work line.

 On the 27th October 2022, Mr. O’Donnell contacted HR and stated that he was unable to continue to work and felt that he was being bullied by his supervisors.  He was advised to make a complaint under the Dignity at Work Policy.  Mr. O’Donnell requested that conversation be documented.  However, we also wish to confirm that Mr. O’Donnell never made a formal complaint under the Dignity at Work.

 From a supervisor and employer perspective, Mr. O’Donnell did not act in accordance with protocols and procedures within the Domestic Services Department and breached the HSE Managing Attendance Policy. During Mr. O’Donnell’s absence from 22nd October 2022 until his cessation of sick pay on 18th November 2022, he continually breached HSE Managing Attendance Policy whereby there were a number of requests made by his employer for completion of HSE Stress at Work Risk Assessment.

 During the above period of time also, Mr. O’Donnell had been in contact with Ms. Aisling McDonald, HR Manager requesting that the risk assessment be completed by HR Department as he had initiated legal correspondence against Mr. Byrne.

As Mr. O’Donnell was not complying with HSE Policies and Procedures regarding sick pay, Mr. Byrne suspended access to HSE sick Leave scheme from Friday 18th November 2022.  Notwithstanding the above, it should be noted that had he went back on sick pay Mr. O’Donnell would only have received pay until the 6th December 2022 as he had exhausted his full sick leave entitlements as outlined in the HSE Sick Leave Policy.

 During this period of time, Mr. O’Donnell continually breached the HSE Managing Attendance Policy.  He had submitted certs to say that he is off work due to work related stress but he would not complete the HSE Risk Assessment Form or agree a meeting with his line manager.

Mr. O’Donnell eventually completed and signed his part of the HSE Risk Assessment Form on 4th November 2022, however he sent the document to National HSE HR which was received by them on 24th November 2022 and subsequently was not received by the respondent until 22nd December 2022. There was further correspondence on 6th January 2023 with Mr. O’Donnell from Mr. Peter Byrne and Ms. Aisling McDonald requesting that Mr. O’Donnell link in with Mr. Byrne to arrange a meeting regarding completion of the risk assessment form.  

During this time, Mr. O’Donnell had put in a request for Mr. Paul Hume, Saolta Group Employee Relations to meet him regarding completion of the risk assessment as opposed to Mr. Byrne.  Ms. McDonald clarified with Mr. Enda Maloney, Saolta Group Director of HR that the policy clearly sets out that risk assessment must be completed by the line manager.

Subsequently, a meeting was eventually agreed under protest by Mr. O’Donnell to meet with Mr. Byrne and to complete the risk assessment.  This meeting took place on 18th January 2023.  During this meeting Mr. O’Donnell continued to frustrate the meeting and refused to answer simple questions.  As there was no agreement reached at the meeting, it was agreed that a further meeting would be arranged and that Mr. Paul Hume would be in attendance.  

 At this stage also Mr. O’Donnell referenced that he had accepted the services of an independent mediator and had written to Mr. Enda Maloney on 8th February 2023 regarding same due his alleged ongoing difficulties that he was experiencing with management in the Facilities Department.  Mr. O’Donnell continued to remain off pay during this period as there was no resolution in relation to completion of his risk assessment.  Mr. O’Donnell had an appointment with Occupational Health during this time and report dated 14th February 2023 was received by LUH HR on 10th March 2023.  The OH report stated that Mr. O’Donnell remains unfit from work and recommended a work stress risk assessment is carried out by a manager with whom no interpersonal difficulties.

 On this basis correspondence was sent to Mr. O’Donnell from Ms. McDonald, LUH HR Manager on the 24th March 2023, proposing that Mr. Paul Hume, Saolta Group Employee Relations would conduct the risk assessment.  This meeting was arranged for Thursday 30th March 2023.  Mr. O’Donnell did not attend this meeting on the 30th March and a further date was arranged by Mr. Hume for the 6th April 2023.    At this meeting, Mr. O’Donnell refused to complete the risk assessment form.

 Mr. Hume offered Mr. O’Donnell another meeting for Tuesday 11th April 2023.  Present at this meeting was Aisling McDonald, HR Manager, LUH, Mr. Paul Hume, Employee Relations, Saolta, Mr. Frank O’Donnell and Ms. Margaret Doherty, colleague of Mr. O’Donnell.  There was no resolution reached at this meeting and Mr. O’Donnell left the meeting stating that he was tendering his resignation. On Tuesday 11th April Mr. O’Donnell tendered his resignation.

CA-00056355-001, 002, 003

This claim of Mr. O’Donnell’s refers to him alleging there was an error in his calculation of:

1)            Payment of holidays/annual leave entitlement

2)            Receipt of public holiday entitlement

3)            Compensation for loss of public holiday entitlement on leaving the organisation

Upon retirement on 12th April 2023, the employer did calculation of annual leave owed which equated to 32.3 hours which Mr. O’Donnell was compensated on his retirement.  Mr. O’Donnell is due a further 15.4 hours for public holiday for period 1st April 2022 – 19th November 2022.  This will be compensated shortly.  

 CA-00057433 – 001 Unfair Dismissal – had to leave job due to conduct of employer  

 The respondent categorically refutes the unfair dismissal claim by Mr. O’Donnell.  We have noted where Mr. O’Donnell did not comply with HSE Managing attendance policy. At no point was the behaviour of the employer contravening to any HSE Policy therefore, Mr. O’Donnell was not treated unfairly.  Furthermore, Mr. O’Donnell did not exhaust the internal processes properly that lead to the submission of his complaint.  

CA-00056355-001, 002, 003 Annual leave/Public Holiday entitlement

The complainant in his submission claimed as follows;

313.4 hours per year at €16.89 per hour

2021-2022-

313.4x € 16.89 = €5293.33

2022-2023

54.45 x €16.89- €919.79

Total €6213.12

At the hearing he clarified that 313.4 hours should in fact be 287 and that the figure of 54.45 should be 52.

The complainant is also claiming public holidays for the period of time when he was cocooning and on sick leave which he quantified at 18 days.

The advice given to LUH on how to manage AL during covid was that; they should ensure that employees took their statutory minimum entitlement both from a welfare viewpoint and to avoid an excessive accumulation of untaken leave.  The advice also pointed out that the times at which annual leave may be taken are determined by the employer according to the OWT Act.  The advice also states that Employees are not entitled to days in lieu of any public holidays that occur while in receipt of SLWP

While cocooning at home employees of the respondent were expected to perform work.  In this case the respondent determined that no suitable work could be assigned to the complainant.  Other employees cocooning, who may have been carrying out work from home, were allocated times for the annual leave on a similar basis to what applied to the complainant.  I can see no reason why the complainant while at home not working (through no fault of his own) and continuing to receive pay should accumulate annual leave during this period to carry over on his return to the workplace or to be paid for on cessation of his employment.  I therefore find that the complaint in relation to accumulation of leave during the period of cocooning is not well founded.

In relation to the claim for accumulation of annual leave during periods of sick leave  I accept the evidence of the respondent that these were paid in full with the exception of periods of unauthorised absence. I also accept the commitment of the respondent to pay 15.4 hours outstanding at the date of the first hearing.  This claim is therefore not well founded.

CA-00057433-001 - Unfair Dismissal.

The complainant is alleging that he had no alternative but to resign following his treatment by the respondent.

Section 2(1) of the Unfair Dismissals Act defines a dismissal as including:

“The termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.

Where constructive dismissal is alleged the burden is on the complainant to show that he was justified in deciding that the actions of the respondent constituted a dismissal.

There are two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving.

On the evidence presented to me at the hearing I see no breach of an essential term of the contract of  employment.

In relation to the reasonableness of the employer’s behaviour I note the following;

The employer dealt appropriately with the prolonged periods of absence of the complainant over many years.  The particular dispute relating to return to work after cocooning was in an unprecedented time of chaos within the country’s health service.  New and complex systems were put in place regarding various categories of absenteeism within the health service including those employees with underlying health issues which required that they cocoon.  Those procedures included in the Letter from the HSE containing guidance to employers within the Health service which states at para 4.10  When granting SLWP (special leave with pay) health service employees are expected to comply at once with any directions which may be given by his/her employer and to take all practicable steps to resume duty as soon as possible.  Otherwise, unless adequate reason is shown for non-compliance the question of withholding pay will arise.

It was in the context of this advice that that Mr Byrne and Ms Harkin interactions with the complainant took place.  One of the incidents complained of related to the complainant being told to leave the premises.  This arose due to his insistence on going to work in his traditional location Medical 2 and Ms Harkin’s insistence that he go to X-ray as previously agreed.  There is a dispute as to whether in fact this was agreed, however, I note that the minutes circulated by Mr Byrne in which this was addressed were not challenged by the complainant when they were circulated.  I therefore conclude that Ms Harkin was acting reasonably in the circumstance.

In relation to the completion of the Risk Assessment form the complainant relies on the advice of the Doctor in OHC that he should complete this with someone other than Mr Byrne.   However, I note that the completion of the form was subsequently carried out with a different manager in the HSE and therefore I do not see this issue as being of such gravity as to give rise to a conclusion of unreasonable behaviour on the part of the respondent.

In relation to the change of roster;  Staff are rostered in accordance with the needs of the organisation and attachment to a particular roster could not reasonably be seen as a condition of employment. Gratuitous changes in rosters could of course be considered differently and might be construed as evidence of bullying.  However that is not the case in this instance where based on the evidence presented I am satisfied that there was a sound business case for the relatively minor change.

The complainant was familiar with the grievance procedures in the respondent’s organisation.  In a separate instance where he had pay stopped he had been successful in having it restored following contact with a senior person in the HSE.  I note that he did not appeal the decision in relation to his grievance when an appeal was available to him.  I have looked at the decision of the respondent’s assignee to hear the grievance and can find no fault with the conclusions reached.

In all these circumstances I find that the complainant has not proved a case of constructive dismissal and I therefore find that he was not unfairly dismissed.

CA-00056355-001 The complaint is not well founded

CA-00056355-002 The complaint is not well founded

CA-00056355-003 The complaint is not well founded

CA-00057433-001 The complainant was not unfairly dismissed

Annual leave entitlement during cocooning, Constructive dismissal